An order of the Industrial Commission limiting an employer's responsibility under an allowed claim "to pay for one (1) chiropractic adjustment per month," is not an absolute denial of the claim going to the basis of claimant's right to participate in the Workmen's Compensation Fund and, therefore, is not appealable to the Court of Common Pleas under the provisions of R.C. 4123.519. ( Brecount v. Procter Gamble Co., 166 Ohio St. 477; Carpenter v. Scanlon, 168 Ohio St. 139; State, ex rel. Mansour, v. Indus. Comm., 19 Ohio St.2d 94; Reeves v. Flowers, 27 Ohio St.2d 40, approved and followed.) APPEAL from the Court of Appeals for Franklin County.
"By virtue of Section 1465-90, General Code [Section 4123.519, Revised Code], in cases heard on appeal to a Common Pleas Court from the Industrial Commission, the jury may only find whether or not the claimant is entitled to participate in the Workmen's Compensation Fund, and the court may only pronounce judgment whether the claimant is entitled to participate in the Workmen's Compensation Fund and to be paid in the manner provided by the workmen's compensation law." See, also, Brecount v. Procter Gamble Co., 166 Ohio St. 477, the second paragraph of the syllabus of which reads as follows: "In the event plaintiff's right to participate is established in such case, the Industrial Commission has exclusive jurisdiction to determine, under the Workmen's Compensation Act, the extent of such participation.
Moreover, one of the controlling principles of the "Workmen's Compensation Act [is that it] was so structured by the General Assembly to repose in the commission sole and final jurisdiction to determine extent of disability, and thus the amount of compensation to which a claimant is entitled to under the Act." Rummel, supra, 28 Ohio St.2d at 233, 57 O.O.2d at 469, 277 N.E.2d at 424; Brecount v. Procter Gamble (1957), 166 Ohio St. 477, 2 O.O.2d 494, 144 N.E.2d 189, at paragraph two of the syllabus. This principle illustrates the legislative intention to allow for expeditious administrative treatment of claims with attendant expertise made under the Workers' Compensation Act without the parties having to undergo time-consuming and potentially vexatious litigation.
Furthermore, because of plaintiff's admitted prior history of back trouble, his claim of additional and aggravated injuries can only be proven by competent medical testimony. Fox v. Industrial Commission, supra; Brecount v. Procter Gamble Co., 166 Ohio St. 477, 144 N.E.2d 189. Plaintiff called two doctors, Rosenberg and Wolkin, to testify as expert witnesses concerning the causal relationship between the occurrence in defendant's retail store and the subsequent surgeries and plaintiff's present condition.
It is firmly established that, once the claimant's right to participate in the fund is established, the commission has the exclusive jurisdiction to determine the extent of the participation. Brecount v. Proctor Gamble Co. (1957), 166 Ohio St. 477, paragraph two of the syllabus; State, ex rel. Campbell, v. Indus. Comm. (1971), 28 Ohio St.2d 154; Reeves v. Flowers (1971), 27 Ohio St.2d 40; and Smith v. Krouse (1978), 54 Ohio St.2d 369. In Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, Chief Justice Leach gave a complete dissertation on the history of R.C. 4123.519 and noted that the right to participate is appealable, but the extent of participation is not appealable.
Thus, it is clear from the holding in Phillips and this court's cases cited in Phillips that, at least since 1921, a denial of a claim on the basis that the claimant's disability is not due to a compensable injury is equivalent to the denial of the claim on a "jurisdictional ground." See, also, State, ex rel. Butram, v. Indus. Comm. (1932), 124 Ohio St. 589; State, ex rel. Araca, v. Indus. Comm. (1932), 125 Ohio 426; State, ex rel. Yance, v. Indus. Comm. (1932), 125 Ohio St. 447; State, ex rel. Cezkovsky, v. Indus. Comm. (1933), 126 Ohio St. 434; State, ex rel. Depalo, v. Indus. Comm. (1934), 128 Ohio St. 410; State, ex rel. Gerard, v. Indus. Comm. (1934), 128 Ohio St. 558; Noggle v. Indus. Comm. (1935), 129 Ohio St. 495; Humphries v. Wheeling Steel Corp. (1937), 132 Ohio St. 263; State, ex rel. Pyles, v. Indus. Comm. (1937), 132 Ohio St. 384; Crumpton v. B.F. Goodrich Co. (1942), 139 Ohio St. 383; and Brecount v. Procter Gamble Co. (1957), 166 Ohio St. 477. Carpenter v. Scanlon (1958), 168 Ohio St. 139, involved an appeal under the provisions of R.C. 4123.519, which became effective in 1955.
" A similar rule was applied in other cases: Gerich v. Republic Steel Corp. (1950), 153 Ohio St. 463, 92 N.E.2d 393; Landon v. Lee Motors (1954), 161 Ohio St. 82, 118 N.E.2d 147; Burens v. Indus. Comm. (1955), 162 Ohio St. 549, 124 N.E.2d 724; Brecount v. Procter Gamble Co. (1957), 166 Ohio St. 477, 144 N.E.2d 189; McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77, 151 N.E.2d 540; Hoppe v. Indus. Comm. (1940), 137 Ohio St. 367, 30 N.E.2d 703. The logic of those cases is that a jury verdict may not be based upon mere speculation or conjecture.
This is a decision as to the jurisdictional right of the claimant to participate in the Workmen's Compensation Fund. It also expresses a determination as to the existence of the required causal relationship between the claimed disability or disabilities and the alleged injury necessary to invoke the commission's jurisdiction. State, ex rel. Brecount, v. Procter Gamble Co. (1957), 166 Ohio St. 477; State, ex rel. Kauffman, v. Indus. Comm. (1929), 121 Ohio St. 472. The Brecount and Kauffman decisions set out the issues requiring a determination by the jury.
The second controlling principle is that the Workmen's Compensation Act was so structured by the General Assembly to repose in the commission sole and final jurisdiction to determine extent of disability, and thus the the amount of compensation to which a claimant is entitled to under the Act. See the second paragraph of the syllabus in Brecount v. Procter Gamble (1957), 166 Ohio St. 477, approving and following State, ex rel. Kauffman, v. Indus. Comm. (1929), 121 Ohio St. 472, and Fisher Body Co. v. Cheflo (1930), 122 Ohio St. 142. The above principles are epitomized in Valentino v. Keller (1967), 9 Ohio St.2d 173, wherein it is stated:
Thus, it is an order constituting a "denial that is absolute going to the basis of claimant's right" that is appealable. It must be noted also that, as expressed in paragraph two of the syllabus in Brecount v. Procter Gamble Co. (1957)), 166 Ohio St. 477 : "In the event plaintiff's right to participate is established * * * the Industrial Commission has exclusive jurisdiction to determine, under the Workmen's Compensation Act, the extent of such participation."